United States v. Phung
683 F. App'x 661
| 10th Cir. | 2017Background
- Phung was convicted in 2009 of dispensing controlled substances without a legitimate medical purpose, health-care fraud, and altering records; sentenced to 109 months and his convictions were affirmed on direct appeal.
- He filed a § 2255 motion that was denied in 2011.
- In 2015 the district court identified Phung as potentially eligible for a sentence reduction under Amendment 782 and appointed the Federal Public Defender to pursue a § 3582(c)(2) reduction.
- Appointed counsel filed an unopposed motion to reduce Phung’s sentence; Phung (pro se) objected, refusing relief or counsel because he believed the convictions were wrongful and did not want them “legitimized.”
- The district court granted the reduction (to 87 months), cured a signature defect in a notice, and ruled Phung’s motion to dismiss appointed counsel moot; Phung was released and is no longer in custody.
- On appeal Phung’s briefs did not challenge the district court’s orders granting the § 3582(c)(2) reduction or denying his motion to dismiss counsel; instead he reasserted collateral attacks on his conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Phung can use a § 3582(c)(2) appeal to attack his underlying conviction | Phung challenges his conviction and argues relief is warranted | Government contends § 3582(c)(2) proceedings are limited to sentence-range reductions, not collateral attacks on conviction | Court: § 3582(c)(2) is narrow and does not permit collateral attacks on conviction; such arguments are improper here |
| Whether Phung preserved the right to appeal the district court’s orders (sentence reduction and appointment/dismissal of counsel) | Phung filed notices of appeal asserting those orders are appealed | Government argues Phung’s briefs do not challenge those orders and thus waived them | Court: Because Phung’s appellate briefs do not raise those issues, they are waived; affirmed |
Key Cases Cited
- United States v. Phung, [citation="384 F. App'x 787"] (10th Cir. 2010) (direct appeal affirming convictions)
- Becker v. Montgomery, 532 U.S. 757 (2001) (signature defects on notices may be cured)
- United States v. Gay, 771 F.3d 681 (10th Cir. 2014) (§ 3582(c)(2) proceedings are narrow and provide limited sentence adjustment)
- Dillon v. United States, 560 U.S. 817 (2010) (§ 3582(c)(2) authorizes only limited modifications to final sentences)
- Kabba v. Mukasey, 530 F.3d 1239 (10th Cir. 2008) (issues not raised on appeal are forfeited/waived)